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Wednesday, January 28, 2009

As you are aware, the Home Minister appealed the decision of Justice Syed Helmy. The appeal is scheduled for hearing at the Federal Court in Putrajaya on 11th February 2008, 9.00 am. We had asked for a panel of five or seven judges (as opposed to the usual three) in view of the legal significance of the issues involved. Our request was refused and the appeal will presumably be determined by a panel made up of three judges.

It is the Home Minister's appeal and as such, the Government will have to convince the court that the High Court erred in law or fact. Counsel for Raja Petra will have the task of defending the correctness of the decision.

Tuesday, January 20, 2009

Political analysis is useful for providing the insights that flow from the more rounded appreciation of context such analysis allows for. Without context the significance of specific action will elude us. For instance, a statement by a politician could mean one thing in isolation but mean something completely different when considered against a backdrop of political intrigue. Anwar Ibrahim saying that he has six defectors from the Barisan Nasional is in itself suggestive of nothing more than an erosion of political support for the BN. However, when viewed against all else that Anwar Ibrahim has been involved in these past six months, the statement potentially takes on added resonance.

Post March-8th, there has been a sharp increase of political analysis on the Malaysian socio-political scene. The alternative media and blogs provide a veritable feast of information on a daily basis on a diverse range of subjects in the field. This has been a good thing for in setting out context, Malaysians have been more able to appreciate the many other ways of looking at things. They have also been able to see that free expression is something that does not harm our society as much as it does the politicians who hide their deficiencies behind such fears. Freer access to a range of diverse opinion has allowed for a maturing of the viewpoint of the Malaysian on the street.

There is however a downside, the root of which lies in the self-perception of the analyst that he and what he says is important. In their enthusiasm, analysts sometimes tend to forget that their analysis is not so much about their being able to do so but rather the truth of a given matter.

In an interview in 1993, the late Edward Said reflected that his meditations on politics and life had “always been a matter of exploration, of self-criticism and constant change in trying to surprise myself as well as my readers.” His reflection was prompted by a sense that public intellectuals tended to allow themselves to become “prisoners of their own language” and to be more concerned with “producing more work in fidelity to what they’d done before” at the expense of a truer perspective.

A noteworthy observation, it cautions against the very thing that seems to have occurred as the state of play between the BN and the Pakatan Rakyat intensifies. Analysis in these heightened times could be likened in many ways to commentary on a football league cup with many commentators having picked their side. Governance is however not about picking a side and sadly, more has been obscured than revealed by the parade of viewpoints and assessments.

In the run-up to the Kuala Trengganu by-election and its aftermath, we have been told what it all means for the BN, Abdullah Badawi, Najib Razak, the Pakatan Rakyat and Anwar Ibrahim. There are permutations upon permutations. We are asked to consider whether there was vote rigging, whether it is Abdullah Badawi that the people rejected or Najib or even the BN, whether it was the Chinese vote that swung the result or whether, as the MCA claims, the Chinese remained loyal to the MCA. We are told so many things in one form or the other, that in the end we are told very little.

For all this, nothing has been made clear and the question uppermost in mind is whether it really matters at all anymore who does what and how.

Whatever the spin or counter-spin, it is glaringly apparent that things are not as they should be in this country. Just as it is obvious that things should have been far better and could have been. It would not be incorrect to say that there are Malaysians who feel that they have come to be held hostage by an administration that is more concerned with protecting its own interests than those of the nation.

The state of flux points to many Malaysians having woken up to the fact. They want change in the most fundamental of ways: independence from a mindset that has left them colonized by an elite for its own benefit.

They are not fastidious as to who it is that becomes the Prime Minister of this country or who it is that forms the government. All they want is a government made up of men and women who believe in the ideals that the founders of this nation thought were a solid basis for a glorious future for all Malaysians. They want those men and women to believe in these ideals enough to get on with what needs to be done as a government of the people, by the people, and for the people. They want the respect that each and every one of them is entitled to as a citizen.

In one of the several speeches that President Barack Obama gave on his historic journey into Washington for his inauguration, he said: “What is required is a new declaration of independence, not just in our nation, but in our own lives.”

It is the same for us. We are in search of a new Malaysia. To find it, we must embrace the possibilities. To do that, our minds and hearts need to be liberated.

Tuesday, January 13, 2009

Imagine a rocket being fired into our territory by persons or organizations in a neighbouring country. There is damage to property and a few people are killed. It would be inconceivable for our government not to take a position and to demand that the government of that neighbouring country take immediate steps to ensure that the event does not reoccur.

Let us say that the event does reoccur, more than once, with more damage and more deaths. The government of the neigbouring country fails to act in a way that the situation requires. More damage is sustained; more Malaysians are put at risk.

At some point, the Malaysian government would have to take steps to secure its population, especially if there is no possibility of a diplomatic resolution of the matter or if such an option were to take too long. Defensive measures may require an offensive strategy to neutralize the site or sites from which rockets are being fired or the persons or organizations involved.

If that were to happen, I think many of us would have no difficulty in accepting the strategy as a necessary measure. Our sovereignty and the lives of Malaysians are not dispensable.

Would it make a difference to us if the Malaysian government had acted in a way that compelled the firing of rockets, for instance by occupying the territory, indirectly if not directly, of those who launch the rockets and acting oppressively? From the former’s point of view, a liberation war is being waged. From the viewpoint of the latter, a crime of aggression is being committed against Malaysia. I am sure some of us would support the offensive while others might have reservations considering the oppression of the people of that territory. All of us would however have great difficulty with the risk to life and limb posed to Malaysians by the continuing attacks.

The situation is a multi-faceted one and not easily resolved.

I would think that there are many who feel that Israel had to act decisively. Leave aside the historical antecedents, Israeli sovereignty and lives are at stake. Options are arguably limited, a state of affairs compounded by the fact that the Palestinian government, to an extent that renders cooperation between the two governments on this issue impossible, condones the rocket attacks.

That is why, and I think rightly so, the debate has settled on the question of whether Israel is playing by the rules. In this there are several issues. First, whether there was sufficient basis for Israel to launch the offensive considering the stranglehold it has over the Gaza strip, and the grave prejudice this has caused to the Palestinians. Secondly, if there was basis, whether the extent and intensity of Israel’s response is proportional and as such justifiable.

The first issue is a heavily nuanced and emotional one. It has been made more so by developments in international law since 9/11. The “preemptive strike” doctrine that underlay the attacks on Afghanistan and, arguably, Iraq has left its mark in the way the international community views a nation’s right to self-defence. The continuing defiance of the UN Security Council’s call for a ceasefire reveals an appreciation on the part of Israel as to the state of flux that international law on the issue currently is in.

The second issue is less ambiguous. It is evident that Israel has exceeded legal and moral limits in the way it has waged its so-called defensive war. As the Special Rapporteur for Human Rights in the Occupied Territories has noted, the contraventions of international humanitarian law and the laws of war include the collective punishment of the 1.5 million people living in the Gaza Strip for the actions of a few militants, the targeting of civilians and the disproportionate military response. It is apparent that war crimes are being committed and, arguably, crimes against humanity.

Though it is clear that the aggression must stop, the way forward is unclear in part for the way in which the matter must be playing out politically within Israel and the Palestine State. In the hypothetical posed above, I am not certain that Malaysians would directly reject extreme and disproportionate measures being taken if these actions were obscured by domestic politics. Consider the way in which a vast number of Americans supported the war on Iraq despite its manifestly precarious foundation. Consider the way in which we unthinkingly support many of our government’s policies and decision despite their obvious consequences.

The efforts by the government to highlight the injustice being perpetrated against the Palestinians are commendable. It seems that the only way the issue is going to be resolved is through concerted action at and through the UN and our efforts may play some part in setting the stage for this to occur.

We must however be cautious in the way we take positions. Stripping the conflict down to its essence, it is a struggle between the colonized and those who colonized them. Our support for the aggrieved should be driven by a desire for justice and not by emotions that leave us blind to the realities.

If it is in fact a desire for justice that drives the Malaysian government in this matter, then I think it is an appropriate time for it to show its commitment to principle through ratification of the statute of the International Criminal Court and the principal international human rights treaties that Malaysia has not as yet. There are also other nations, such as Somalia, that are desperate for effective international measures and for which efforts on the part of the Malaysian government could go a long way. This nation must stand up and be counted.

And to do that effectively it should start where it matters most: at home.

(Malay Mail; 13th January 2009)

MIS

(This article has been edited since its publication in the Malay Mail)

Tuesday, January 6, 2009

I had heard of Haris Ibrahim even before I met him. Some acquaintances had told me of a lawyer who was seemingly singlehandedly taking on the world in his defence of principle. At the time he was involved in the case of the Besut Four, four individuals who had been convicted by a syariah court and sentenced to three years jail even though they had renounced Islam. His was the titanic struggle that pointing to an unpopular and inconvenient truth always is.

Reading of the case in the newspapers, it had struck me how frustrating it must have been for Haris to have to contend with a system that seemed more concerned with finding excuses than solutions. I wondered what it was that made him do what he did.

I came to see the sense of his choices when I met him for the first time at a Bar Council human rights training session a short while later. I saw a man who embraced the world and whose heart had enough space in it for everyone.

Over the years, we have collaborated on various initiatives, driven by a common belief in Malaysia’s need for an open and inclusive society in which all its children, irrespective of race, religion or culture, can have the freedom to pursue their dreams. It is this common belief that saw us developing a proposal for a commission that would be empowered to enquire into matters of religious harmony. It led us to engaging in a public awareness campaign aimed at creating awareness about worrying constitutional trends. It also prompted us to team up in a number cases that we believed had great bearing on the way things would be and which have ultimately left their marks on this nation.

Haris has become one of the most important civil society voices of this era. His highly influential blog, The People’s Parliament, and the range of civil society initiatives he gave life to over the last two years are breathtaking for their depth of reflection and breadth of reach. He was a prime mover of The Peoples’ Declaration, the Barisan Raykat and a host of other initiatives all of which were aimed at making the rest of us see that we had the power to effect change in our hands.

Before we began to believe in ourselves, Haris already did. March 8th proved his faith not to be misplaced. As much as this was about the soundness of his vision of what could be, it was equally about the correctness of his method. I have had the privilege of seeing some of his ideas come to life and I can say with conviction that nothing happened overnight. They developed one step at a time, from conceptualizing to planning to implementation, everything had its time and place.

The lesson I took from this is that to change the world, you must want it to and then take it one small step at a time.

Any effort aimed at improving our community, no matter how small, is a worthwhile one. Change is the by-product of an accumulation of worthwhile endeavours that may have as individual efforts escaped notice. We might think that one person’s choice not to engage in corrupt practices anymore would not bring endemic corruption to an end. If however there were sufficient numbers of such individuals, a tipping point could be reached and we might see a day when those who bribe stood out as the exception rather than the norm.

Understanding that our every action has a consequence is therefore the key that unlocks the door to change. Revolutions always start small. Consider the signals we send to people around us - family, friends or colleagues - and how those signals will be received. If you are a father and you bribe a police officer in front of your child, what you are in effect saying is that corruption is acceptable no matter how you might try to justify your behaviour. In the same way, if you are racist then those who you influence, even indirectly, will be influenced. It is the less obvious dimensions of what we do on a daily basis that trap us into vicious cycles of destructive conduct.

The change we effected last year was only skin deep. For us to transform ourselves we must confront the question of whether we really want change. We cannot run away from the fact that though the politicians are to blame for a good number of things, the ills that ravage our society stem from a value system that we have allowed to warp over time for our own convenience.

Monday, January 5, 2009

(I start a monthly column with The Malaysian Insider today. My column will appear on the first monday of each month. This is the first (I have made some minor changes since submitting it))

The Freedom To Be

In his seminal work, “Islam And The Secular State: Negotiating The Future Of Shari’a” (Harvard; 2008), the noted scholar Abdullahi Ahmed An-Naim observes that it is not possible for people of any society to keep their religious belief, commitments and concerns out of their political decisions and choices. He notes that the categories of understanding that people employ in their everyday life cannot neatly be parsed into the non-religious and the religious, an approach which has led to tensions and a spiral of mutual violence and destruction.

An-Naim as such propounds that it is both practical and healthy to recognise the role of religion and then regulate it as a source of guidance for political decision. This must however take place in the context of a secular state. An-Naim defines this as a state in which institutional separation between Islam and the state is maintained and the influence of religion in the public domain is open to negotiation, such negotiation being contingent upon the free exercise of the human agency of all citizens, Muslims and non-Muslims alike. Religion needs secularism, he argues, to mediate between different communities (religious and non-religious) as well as securing the legal and political space for religions to develop as they should. In this context, he observes that the safeguards of secularism, constitutionalism, human rights and citizenship are vital to set limits on the power of the majority and impede oppression.

The points An-Naim makes are of great relevance to us.

It is beyond question that Islam is closely linked to politics in this country with Malay-centric political parties PAS and UMNO making use of the religion for political advantage to their respective ends. For PAS, this has been portrayed as an advancing of its own ideological positions, centered on Islam as they are. UMNO on the other hand invokes Islam in aid of its Ketuanan Melayu ideology. In this, Islam has become political currency and a strategic weapon in the campaign against each other to the detriment of other political and civil society actors who have in any event been largely silenced by the stranglehold maintained by PAS and UMNO on Islam and Malay rights. The spectre of race riots and heavy-handed policing of anti-expression laws have stifled necessary and practical discussion of the very serious issues that arise and which affect all Malaysians.

The upshot is that both parties have ultimately positioned Malaysia as an Islamic state in one form or the other. UMNO continues to push boundaries on the application of Islamic law in an effort to showcase its Islamist credentials. Less circumspect and notwithstanding its membership of the Pakatan Rakyat, PAS insists in the face of constitutional limitations that the syariah must be the supreme law of the land, characterizing its demands for the same as being nothing more than allowing Muslims to fulfill their religious obligations. This has unfortunately given rise to tensions in various quarters.

The controversy over the implementation of hudud laws illustrates the foregoing. Under the Constitution as it is currently framed, it would not be possible for hudud and qisas law to be implemented at either the State or the Federal level. As it stands, the Constitution divides legislative power between the State Legislative Assemblies and Parliament. The power to enact criminal law is vested in Parliament with the State Legislative Assembly having only the limited power to enact offences against the precepts of Islam where such offences do not concern any of the matters within Parliament’s power to enact criminal law. These offences are only as against Muslims. Furthermore, the syariah court is limited to imposing a maximum sentence of three year jail or a fine of RM5,000 or six strokes of the whip or any combination thereof. It is obvious therefore that the State has no power to make hudud and qisas laws, which amongst others are punishable by amputation and stoning. This was the basis of Zaid Ibrahim’s legal challenge against Kelantan and Trengganu in 2003.

The constitutional scheme is not beyond PAS’ comprehension judging by its shift in rhetoric. The suggestion that hudud and qisas would now be introduced if the Pakatan Rakyat forms the Federal Government strongly suggests that PAS appreciates that criminal law is a matter for Parliament. It would nonetheless be impossible for PAS to replace the current criminal law system with a syariah based system without a constitutional amendment and an overhauling of the entire system of justice. The constitution as it stands allows for the enacting of criminal law that does not fall within the ambit of offences against the precepts of Islam or, put another way, neutral or secular criminal law. This is consistent with the guarantees of religious equality and harmony as well as individual autonomy under the Constitution that impede the imposition of religious based law on person of other or no faiths.

That PAS continues with its posturing nonetheless reflects the continued political value of the religious card, as does UMNO’s failure to reject the possibilities outright. In doing so, both have adopted a majoritarianism that in projecting Malaysia as a hybrid-Islamic state oppresses both Muslim and non-Muslim alike.

For non-Muslims, the public space for expression and discussion has been limited through discriminatory policies that are justified by reference to their aim of protecting Islam. The recent directive to cease publication of the Herald in the Malay language illustrates this as do a range of other policies or directives. The question must be asked whether Islam or even the Malays are in need of protection and, if so, from what. Islam is already protected under the Constitution and the legal framework, and ample provision has been made for Muslims to practice their faith.

For Muslims, the freedom and diversity provided for by the syariah have been obscured in the shadow of the monolithic Islam that authorities have been permitted to erect. Through laws and fatwas and denunciations, it has become such that only one type of Islam may be permitted, that type which the State defines and applies. This does not concern only the so-called deviationist types of Islam, the Ahmadiyah movement in Selangor being the latest target for a display of religious zeal on the part of the state; it equally pertains to the freedom to be a thinking and conscious Muslim. The banning of books and the recent yoga controversy epitomizes the status the Islamic administration has in this country and the detrimental impact this has had on the life of a Muslim. As An-Naim candidly observes, “As a Muslim. I need a secular state in order to live in accordance with the Shari’a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim.”

These trends are worrying, more so for their exploiting a tremendously weakened system that does not safeguard society as it is intended to. We must find the space that will allow each of us to be who we are in the way An-Naim suggests.

To do that, I believe that we do not have to look any further than the Constitution. The key elements of An-Naim’s model are provided for in this manner: it limits the administration of Islam to matters of personal law and in doing so mandates the neutrality of the public law system. It nonetheless allows for Islam to be developed fully through a separate system of personal law administration. The Constitution also guarantees the freedom of expression and association that allows entities such as PAS and ABIM to exert influence to the extent that they can, their views being counterbalanced by different views. These and other guarantees guarantee the free exercise of human agency.

If this system were permitted to achieve equilibrium as it once did, it would be possible to see a flourishing of Islam and the development of a truly just, compassionate and fair society for all. That is something one does not need the label of an Islamic state to attain.